Frederick H. Banks v. MARY BETH BUCHANAN, United States Attorney

ALD-227 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1027
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FREDERICK H. BANKS,
Appellant
v.
MARY BETH BUCHANAN, United States Attorney;
BRENDAN T. CONWAY, AUSA; PAUL HULL, AUSA
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No.2-08-cv-01209)
District Judge: Honorable Joy flowers Conti
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 25, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: July 6, 2009)
_________
OPINION
_________
PER CURIAM
On October 14, 2004, a jury in the Western District of Pennsylvania convicted the
Appellant, Frederick Banks, on charges of mail fraud, criminal copyright infringement,

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uttering and possessing counterfeit or forged securities, and witness tampering. These
convictions stemmed from Banks’s sales of illegally copied versions of copyrighted
Microsoft software products through an Internet marketplace website, Amazon.com.
Banks is currently serving a five-year sentence for these convictions at the Federal
Correctional Institution in Yazoo City, Mississippi.
On August 29, 2008, Banks filed a pro se “petition for a writ of mandamus
pursuant to 18 U.S.C. § 3332” in the United States District Court for the Western District
of Pennsylvania. In his petition, Banks contended that, during the grand jury proceedings
preceding his criminal trial, Assistant United States Attorney (“AUSA”) Brendan Conway
denied his request to introduce his BMW as evidence because, according to AUSA
Conway, the government no longer had it. According to Banks, however, another
attorney later told him that the car was actually in the government’s possession at that
time. Based on these allegations, Banks asked the District Court to issue a writ of
mandamus to “compel the United States Attorney to present the factual evidence
concerning alleged criminal wrongdoing of Brendan Conway, AUSA to the grand jury, . .
. or for the Court to request and bring this information to the attention of the grand jury.”
(Mandamus Petition 1.)
By order entered November 21, 2008, the District Court dismissed the petition
pursuant to 28 U.S.C. § 1915(e) on the ground that Banks lacks standing to compel the

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Banks’s notice of appeal included a motion for reconsideration of the District Court’s1
November 21, 2008 order. The District Court has not acted on this motion. As the
motion is dated December 16, 2008, beyond the period prescribed in Rules 59(e) and
4(a)(4) of the Federal Rules of Civil and Appellate Procedure, respectively, we may
proceed in this matter.
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U.S. Attorney to present evidence to a grand jury. This appeal followed.1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review
of the District Court’s order dismissing Banks’s mandamus petition is plenary. See
Harmon Cove Condominium Ass’n v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987). Because
Banks is proceeding in forma pauperis, we must review this appeal to determine whether
it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We dismiss an appeal
pursuant to § 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Upon review, we agree with the District Court that Banks lacks standing to compel
the presentation of evidence under 18 U.S.C. § 3332. This provision, which is part of the
Organized Crime Control Act of 1970, was designed to encourage citizens to report
organized crime and to guard against the possibility of government corruption. Sargeant
v. Dixon, 130 F.3d 1067, 1068 (D.C. Cir. 1997). Section 3332 provides as follows:
It shall be the duty of each such grand jury impaneled within any judicial
district to inquire into offenses against the criminal laws of the United States
alleged to have been committed within that district. Such alleged offenses may
be brought to the attention of the grand jury by the court or by any attorney
appearing on behalf of the United States for the presentation of evidence. Any
such attorney receiving information concerning such an alleged offense from
any other person shall, if requested by such other person, inform the grand jury

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Anticipating our present conclusion, Banks argues that he is not attempting to compel2
the U.S. Attorney to prosecute AUSA Conway, but is, rather, asking “to have either the
court or the United States Attorney present certain information to the grand jury.”
(Mandamus Petition 2.) This distinction, however, does not alter our conclusion that
Banks lacks standing to enforce § 3332 by compelling the U.S. Attorney to present
information to a grand jury. Furthermore, § 3332 does not contemplate the type of court
action that Banks requests.
Appellees’ motion for summary action will be denied as moot.3
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of such alleged offense, the identity of such other person, and such attorney’s
action or recommendation.
18 U.S.C. § 3332(a). Thus, Banks is correct that § 3332 requires the U.S. Attorney to
inform the grand jury of information provided by “any person” about an “offense[]
against the criminal laws of the United States.” It does not, however, confer standing
upon Banks to enforce the U.S. Attorney’s obligation, as Banks’s interest in the
prosecution of AUSA Conway is not a legally protected interest. See Sargeant, 130 F.3d2
at 1069; see generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(explaining that, in order to satisfy the constitutional minimum of standing under Article
III, a plaintiff must have suffered an “‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not
“conjectural” or “hypothetical”’”). We cannot discern any basis here for Banks to compel
action pursuant to § 3332 such that he would have standing.
For the foregoing reasons, we conclude that this appeal lacks an arguable legal
basis. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).3

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